Wells Fargo Bank, N.A. v. Maclay Construction, Inc. et al
MEMORANDUM OPINION AND ORDER entered that plaintiff's motion for summary judgment (Doc. 23) is GRANTED. The plaintiff has established its entitlement to a judgment in the amount of $286,074.91, with post-judgment interest due to accrue on same at the rate of 0.11% from today's date. Signed by Magistrate Judge William E. Cassady on 12/20/2011. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
WELLS FARGO BANK, N.A.,
MACLAY CONSTRUCTION, INC.,
MEMORANDUM OPINION AND ORDER
This matter is before the Court on plaintiff’s motion for summary judgment (Doc.
22), along with a supporting brief (Doc. 23) and evidentiary materials (Doc. 24). The
defendants declined the opportunity to respond to the summary judgment motion.
(Compare Doc. 25 (submission order extended to defendants a period of time, up to and
including December 7, 2011, to file a response to the summary judgment motion) with
Doc. 26 (plaintiff’s December 9, 2011 notice of no response by defendants).)1 Therefore,
this matter is ripe for disposition by the undersigned, who the parties explicitly
consented may exercise jurisdiction in this case. (Compare Doc. 19 (“In accordance with
provisions of 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties in this case consent to
have a United States magistrate judge conduct any and all proceedings in this case,
“Plaintiff’s counsel has spoken with Defendants’ counsel who has stated that no
responsive pleading or objection will be filed by Defendants.” (Doc. 26, at ¶ 6.)
including the trial, order the entry of a final judgment, and conduct all post-judgment
proceedings.”) with Doc. 20 (endorsed order of reference).) After careful consideration
of the foregoing, the Court concludes that the motion is due to be granted.2
DETERMINATIONS OF UNCONTROVERTED FACT
On September 13, 2006, defendant Maclay Construction, Inc. (“Maclay
Construction”) executed a note in favor of the plaintiff, which matured July 28, 2009
without payment of all indebtedness due and owing thereunder. Maclay Construction
executed, on December 20, 2007, a second note in favor of plaintiff which also matured
July 28, 2009 without payment of all indebtedness due and owing thereunder.
Defendant Charles A. Maclay entered a separate unconditional guaranty, on September
13, 2006, of the indebtedness under the notes, which he has not satisfied. Maclay
Construction is in breach of the notes, and Charles Maclay is in breach of the
The amount owing under the first note and guaranty (including interest, late fees
and costs) as of October 25, 2011 is $138,716.72 and under the second note and guaranty
(including interest and late fees), as of that same date, is $125,205.47. Although plaintiff
states in the body of its summary judgment motion that interest and costs of collection
continue to accrue, it gives no indication at what per diem rate interest continues to
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Doc. 19 (“An appeal from a judgment
entered by a magistrate judge shall be taken directly to the United States court of appeals for
this judicial circuit in the same manner as an appeal from any other judgment of this district
accrue nor does it request an award of such continuing interest. Accordingly, this
Court’s judgment will not contain an award of such further interest. However, because
plaintiff specifically requests post-judgment interest, provision will be made for same.
The notes and guaranty require the defendants to pay the plaintiff’s reasonable
attorneys’ fees and costs in collecting the indebtedness. The plaintiff has incurred such
fees and costs in the total amount of $22,152.72.
CONCLUSIONS OF LAW
Summary judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106
S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (“The mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly supported motion for
summary judgment.”); Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir. 2009)
(“[S]ummary judgment is appropriate even if ‘some alleged factual dispute’ between the
parties remains, so long as there is ‘no genuine issue of material fact.’”).
The party seeking summary judgment has the initial responsibility of informing
the court of the basis for the motion and of establishing, based upon the discovery
instruments outlined in Rule 56(c), that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); see also Allen v. Board of
Public Educ. for Bibb County, 495 F.3d 1306, 1313 (11th Cir. 2007) (“The moving party
bears the initial burden of showing the court, by reference to materials on file, that there
are no genuine issues of material fact that should be decided at trial.”). Once this initial
demonstration is made, the “responsibility then devolves upon the non-movant[s] to
show the existence of a genuine issue . . . [of] material fact.” Fitzpatrick v. City of Atlanta,
2 F.3d 1112, 1116 (11th Cir. 1993); see also Allen, supra, at 1314 (“‘When a moving party
has discharged its burden, the non-moving party must then “go beyond the pleadings,”
and show by its own affidavits, or by “depositions, answers to interrogatories, and
admissions on file,” designate specific facts showing that there is a genuine issue for
trial.’”); see Comer v. City of Palm Bay, Florida, 265 F.3d 1186, 1192 (11th Cir. 2001) (“Once
the moving party discharges its initial burden of showing that there is an absence of
evidence to support the non-moving party’s case, the non-moving party must specify
facts proving the existence of a genuine issue of material fact for trial confirmed by
affidavits, ‘”depositions, answers to interrogatories, and admissions on file.”’”).
Forbidding reliance upon pleadings precludes a party from
“choos[ing] to wait until trial to develop claims or defenses relevant to the
summary judgment motion.” . . . This effectuates the purpose of summary
judgment which “‘is to pierce the pleadings and to assess the proof in
order to see whether there is a genuine need for trial.’” . . . Thus, “mere
general allegations which do not reveal detailed and precise facts” will not
prevent the award of summary judgment upon a court’s determination
that no genuine issue for trial exists.
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 592 (11th Cir.), cert. denied sub nom.
Jones v. Resolution Trust Corp., 516 U.S. 817, 116 S.Ct. 74, 133 L.Ed.2d 33 (1995); see also
LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 835 (11th Cir. 1998) (“[The nonmoving
party] must raise ‘significant probative evidence’ that would be sufficient for a jury to
find for that party.”). In other words, there is no genuine issue for trial “[w]here the
record taken as a whole could not lead a rational trier of fact to find for the non-moving
party[.]” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct.
1348, 1356, 89 L.Ed.2d 538 (1986); see Comer, supra, 265 F.3d at 1192 (“Summary
judgment is required where the non-moving party’s response to a motion is merely ‘a
repetition of his conclusional allegations’ and is unsupported by evidence showing an
issue for trial.”).
In considering whether the plaintiff is entitled to summary judgment in this case,
the Court has viewed the facts in the light most favorable to the defendants. Comer,
supra, 265 F.3d at 1192 (“We view the evidence and all factual inferences raised by it in
the light most favorable to the non-moving party, and resolve all reasonable doubts
about the facts in favor of the non-moving party.”).
The requirement to view the facts in the nonmoving party’s favor
extends only to “genuine” disputes over material facts. A genuine dispute
requires more than “some metaphysical doubt as to the material facts.” A
“mere scintilla” of evidence is insufficient; the non-moving party must
produce substantial evidence in order to defeat a motion for summary
Garczynski, supra, 573 F.3d at 1165 (internal citations omitted). In addition, “[t]here is no
burden upon the district court to distill every potential argument that could be made
based upon the materials before it on summary judgment.” Resolution Trust Corp., supra,
43 F.3d at 599. Accordingly, the Court limits its review to those arguments expressly
advanced by the parties.
Because Rule 56(a) specifies that summary judgment may be entered only when
the record evidence shows that there is no genuine issue of material fact and that the
movant is entitled to judgment as a matter of law, “the district court cannot base the
entry of summary judgment on the mere fact that the motion was unopposed but,
rather, must consider the merits of the motion.” United States v. One Piece of Real Property
Located at 5800SW 74th Ave,., Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004) (citation
omitted). On the other hand, the Court’s review when defendants do not respond to a
motion for summary judgment is less searching than when they do respond. “The
district court need not sua sponte review all of the evidentiary materials on file at the
time the motion is granted, but must ensure that the motion itself is supported by
evidentiary materials. At the least, the district court must review all of the evidentiary
materials submitted in support of the motion for summary judgment.” One Piece of Real
Property, 363 F.3d at 1101-1102 (internal citation omitted). Should this review reveal the
plaintiff’s entitlement to summary judgment, under Resolution Trust Corp., supra, the
Court will not consider any legal or factual arguments the defendants could have, but
have not, asserted in opposition.
Count I alleges breach of contract (both as to the notes and the guaranty) against
Maclay Construction and Charles A. Maclay; Count II asserts a claim for money had
and received against both defendants; and Count III alleges a claim of unjust
enrichment against both defendants. (Doc. 1, at 2-5.)
“The elements of a breach-of-contract claim under Alabama law are (1) a valid
contract binding the parties; (2) the plaintiffs’ performance under the contract; (3) the
defendant’s nonperformance; and (4) resulting damages.” Shaffer v. Regions Financial
Corp., 29 So.3d 872, 880 (Ala. 2009) (internal quotation marks and citation omitted).3 The
uncontroverted evidence shows the existence of contracts between the plaintiff and
Maclay Construction; the plaintiff’s performance under the contracts by lending Maclay
Construction certain sums; Maclay Construction’s non-performance by failing to repay
the entirety of the borrowed sums and other amounts within the time and other terms
set forth in the contracts; and the plaintiff’s resulting damages from Maclay
Construction’s failures to pay. The uncontroverted evidence thus establishes all
elements of the plaintiff’s breach of contract claim asserted against Maclay Construction
and Charles Maclay, who offer no defense. Thus, plaintiff is entitled to summary
judgment as to this claim.
“The essence of the theories of unjust enrichment or money had and received is
that a plaintiff can prove facts showing that defendant holds money which, in equity and
good conscience, belongs to plaintiff[.]” Hancock-Hazlett General Construction Co., Inc. v.
Trane Co., 499 So.2d 1385, 1387 (Ala. 1986) (citations omitted; emphasis in original); see
also Jewett v. Boihem, 23 So.3d 658, 661 (Ala. 2009) (“‘[An action for money had and
received] is founded upon the equitable principle that no one ought justly to enrich
Moreover, “[e]very suit on a guaranty agreement requires proof of the existence
of the guaranty contract, default on the underlying contract by the debtor, and nonpayment of
the amount due from the guarantor under the terms of the guaranty.” Sharer v. Bend Millwork
Systems, Inc., 600 So.2d 223, 225-226 (Ala. 1992) (internal quotation marks and citation omitted);
see also Delro Industries, Inc. v. Evans, 514 So.2d 976, 979 (Ala. 1987) (same). The uncontroverted
evidence in this cases establishes the existence of a guaranty by Charles Maclay; Maclay
Construction’s default on two underlying contracts; and non-payment by Charles Maclay.
himself at the expense of another, and is maintainable in all cases where one has
received money under such circumstances that in equity and good conscience he ought
not to retain it because in justness and fairness it belongs to another[,]’ [and] ‘a cause of
action for money had and received . . . “aims at the abstract justice of the case, and looks
solely to the inquiry, whether the defendant holds money, which . . . belongs to the
plaintiff.”’” (internal citation and bracket omitted)). As reflected above, the
uncontroverted evidence in this case establishes that plaintiff extended two loans to the
defendants; defendants received all proceeds of those two loans; defendants agreed in
the executed notes and guaranty to repay the loans; and defendants failed to pay all
sums due and owing under the loans. The uncontroverted evidence thus establishes all
elements of the plaintiff’s equitable theories of recovery against the defendants, and the
defendants offer no defense. The plaintiff is entitled to summary judgment as to these
two equitable theories of recovery.
The complaint seeks recovery of attorney’s fees and cost under each count. (Doc.
1, at 3-5.) The plaintiff’s evidence establishes that the amount of such fees and costs total
$22,152.72. In Alabama, attorneys’ fees are recoverable when provided for in a contract,
see. e.g., James v. James, 768 So.2d 356, 360 (Ala. 2000), as is the case here, and in the
Eleventh Circuit, “a request for attorneys’ fees pursuant to a contractual clause is
considered a substantive issue[,]” Brandon, Jones, Sandall, Zeide, Kohn, Chalal & Musso,
P.A. v. MedPartners, Inc., 312 F.3d 1349, 1355 (2002), which may be decided within the
context of ruling on a summary judgment motion, see Ierna v. Arthur Murray
International, Inc., 833 F.2d 1472, 1476 (11th Cir. 1987) (“When the parties contractually
provided for attorneys’ fees, the award is an integral part of the merits of the case.”). In
addition, Rule 54(d)(1) recognizes that costs may be awarded to the prevailing party.
Thus, plaintiff is entitled to an award of attorneys’ fees and costs totaling $22,152.72.
Finally, plaintiff requests that it be awarded post-judgment interest on the total
award, that is, $286,074.91, “at the contract rate of Plaintiff’s Prime Rate (the rate
announced by Plaintiff from time to time as its prime rate), plus three and ½ percent
(3.5%).” (Doc. 23, at 11.) In a diversity case, like the present one (see Doc. 1, at ¶ 5 (“This
Court has original jurisdiction of this case pursuant to 28 U.S.C. § 1332.”)), however, “a
district court will apply the federal interest statute, 28 U.S.C. § 1961(a), rather than the
state interest statute” in awarding postjudgment interest. Insurance Co. of North
America v. Lexow, 937 F.2d 569, 572 n.4 (11th Cir. 1991) (citation omitted). “Such interest
shall be calculated from the date of the entry of the judgment, at a rate equal to the
weekly average 1-year constant maturity Treasury yield, as published by the Board of
Governors of the Federal Reserve System, for the calendar week preceding the date of
the judgment.” 28 U.S.C. § 1961(a).4
For the reasons set forth above, plaintiff’s motion for summary judgment (Doc.
23) is GRANTED. The plaintiff has established its entitlement to a judgment in the
The most recent postjudgment interest rate, the average 1-year constant Treasury
http://www.federalreserve.gov/releases/h15/current/ (last visited today).
amount of $286,074.91, with postjudgment interest due to accrue on same at the rate of
0.11% from today’s date.
DONE and ORDERED this 20th day of December, 2011.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
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